Irish Employment Legislation Updates and Guidance Archives - Page 2 of 9

Disabled Employee not Accommodated by Employer Awarded €30,000!

As redress for infringement of her statutory rights and breaches of the Employment Equality Acts, former employee of a Multi-National Retailer receives compensation in the amount of €30,000.

The Director of the Equality Tribunal delegated this case to Orlaith Mannion, Equality Officer on 13^th August 2013.

The specific case concerned a claim by Ms. H against her employer, a Multi-National Retailer. Ms. H claimed that she was discriminated against on the grounds of disability in terms 6(2)(g) of the Employment  Equality Acts 1998-2011. The claimant stated that her employer failed to provide appropriate measures to allow her to continue to be employed in her original role with the retailer.

The claimant had worked on the customer service desk for 30 years and enjoyed her position there. In 2001 Ms. H had an operation to remove her colon and, after that, had some medical issues including episodes of diarrhoea. A few years after this operation, Ms. H once again had surgery – this time on her knees as a result of osteoarthritis and had issues with the toilet facilities in her place of work after this as the one suitable toilet in the store was upstairs. One toilet located on Ms. H’s floor required that she walk across the shopping centre to access it. This toilet did not offer a huge improvement for Ms. H as she had to hoist herself up and down onto the toilet by gripping the doorframe.

Disabled

When the store was being revamped, the claimant suggested that her employer take the opportunity to install a toilet for people with disabilities – customers and employees alike. No disabled toilet was installed and Ms. H said she heard many excuses for this throughout her service with her employer.

Ms. H claimed that in 2009 she was informed that a disabled toilet was due to be installed. Ms. H went on holidays shortly after hearing this news and, unfortunately, broke her leg while away. Ms. H was a wheelchair user for a period of 6 months and underwent more surgeries in January and July 2010. When she was back on her feet Ms. H wanted to return to work and was medically certified as fit to do so in July 2011. Ms. H’s doctor made some recommendations that would allow Ms. H to return to work –

The doctor recommended that Ms. H should return on a phased basis, that she should be able to sit for periods during her working day and that she have access to a disabled toilet.

The employer responded stating that the claimant returning on a phased basis would be facilitated. However, they were not able to fulfil the other recommendations of the doctor. According to the store management, Ms. H’s role (behind the kiosk) had changed during her absence and, although a chair had been available there previously, the store was no longer able to facilitate a chair behind the kiosk and therefore they could offer her a role at the checkout when she returned to work instead of Ms. H returning to her previous role. A checkout role would not have been practical for Ms. H to take as she would have been required to lift heavy grocery items and this was something that she was not able to do (and had not been required to do as part of her Customer Service role).

Also, according to the management, because the store revamp had been suspended, so too had the provision of a disabled toilet. However, the respondent did offer the claimant extra time to use the shopping centre’s disabled toilet and the management of the store felt as though this was reasonable.

Ms. H felt that the checkout role was unsuitable and would have been a demotion. She also felt that the toilet scenario was unacceptable as there was often queues at this toilet and her condition did not allow for her to wait in queues for long periods. Ms. H raised a formal grievance which was heard in August 2011. The complaint was not upheld and neither was Ms. H’s appeal. Ms. H felt that her employer ignored her disabilities since her surgeries in 2005 and felt as though her employer had failed in their duty of care to her.

The respondent refuted any claims of discrimination and claimed that the employee had been out of work for a much longer period than the doctor had originally advised (6-9 months). More than one year after Ms. H broke her leg on holidays she attended a return to work meeting and the respondent pointed out that Ms. H was outside of her support period and recommended that she attend the company doctor. Ms. H did so the following month and the Occupational Health Advisor recommended that she return to work on a phased basis in approximately 3 months' time. The Health Advisor also recommended that a risk assessment should take place and anything like slippy or uneven floors should be attended to in order that another fall was prevented.

The respondent was satisfied for Ms. H to return when recommended by the Occupational Health Advisor (in approximately 3 months). However, as the Customer Service desk role had changed in the two years that Ms. H had been absent from work and (for various reasons e.g. lack of space) no chair was situated there any longer, the respondent was not especially fit for that particular role any longer. Ms. H and her doctor felt that the checkout operator role was not a valid alternative.

The Equality Officer found that Ms. H had been discriminated against by her employer. While her doctor’s request for her to return to work on a phased basis had been upheld, other notable recommendations were not fully adhered to.

MS. H was supposed to be allowed to sit for periods during the working shift – the customer service role would not have allowed for this and, while the checkout operator role allowed her to sit, it required lifting of heavy groceries. The Equality Officer found that providing a reasonable disabled toilet for Ms. H would have cost the respondent approximately €22,600.00 and this would not have imposed a burden on a company that, in 2013, reported revenue in Ireland as £2,315 million Sterling.

The employer did not show genuine engagement with the process of finding effective and practical measures to allow the claimant to return to work.

Therefore, the Equality Officer found in favour of the claimant.

In accordance with Section 82 of the Act, she ordered the respondent:

(a) pay the complainant €30,000 (the approximate equivalent of a year’s salary) in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms H’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(b) conduct a review of its employment policies and procedures to ensure that they are in compliance with these Acts with particular reference to how employees with disabilities are treated.

http://www.workplacerelations.ie/en/Cases/2014/April/DEC-E2014-030.html

By The HR Company Administrator|2021-02-23T17:51:30+00:00June 17th, 2015|Contracts of Employment, HR Guide|0 Comments

Important Points for Employers re Data Protection

The Data Protection Acts 1988 and 2003 provide rules that apply to the collection, use, disclosure and transfer abroad of information about individuals. The Acts cover the principals that companies must follow when processing personal data about employees as well as information about clients/residents.

The Acts also give individuals certain rights in relation to personal data that is held about them. 

If you as a Company collect, host or process data about people on any type of computer or structured filing system, then you are considered a data controller under the Acts.

Every Company holding information about individuals should have a Data Protection Policy in place and should ensure that all IT administrators and employees with access to personal/confidential information are fully trained on the rights and responsibilities associated with that access.

Billy Hawkes, the Data Protection Commissioner, ensures that companies that keep personal data are in compliance with the Acts. The Commissioner has a range of enforcement powers to help guarantee that the provisions of the Acts are observed. The Commissioner can serve legal notices compelling data controllers to provide information needed to assist with his enquiries. He can also compel data controllers to implement provisions of the Acts in a particular prescribed manner.

He may investigate complaints made by members of the public and can authorise officers to enter sites with the aim of inspecting the type of personal information kept as well as how it is processed and the security measures that the data controller has in place. Companies are required to co-operate fully with such data protection officers.

Data controllers who are found guilty of offences under the Acts can be fined up to €100,000 on conviction and may be ordered to delete all or part of their database.

The Data Protection Commissioner publishes a report annually naming, in certain cases, data controllers who were investigated by his office.

On 12th May 2014 Billy Hawkes launched his Annual Report for 2013. The report contains a summary of the activities of the Office of the Data Commissioner during the entire year.

The Annual Report highlights a huge number of individual complaints that were referred to the Office regarding difficulties in gaining access to personal data. According to the report these were as a result of poor customer service standards by commercial entities.

It appears as though individuals who feel as though they are not receiving sufficient customer service from a commercial entity are exercising their data protection rights more regularly and are more frequently requesting a copy of all personal data held by that entity.

If the initial query or request had been comprehensively dealt with in the first instance then perhaps they would have been less likely to exercise their data protection right to request a copy of all personal data held about them.

Employers should note that telephone call recordings are considered personal data. The Office has seen as increase in the number of access requests to data controllers by individuals seeking a copy of telephone recordings. Organisations are obliged to inform data subjects that their call may be recorded if a call recording system is in operation.

Throughout the course of 2013 the Office opened more than 900 complaints for investigation. More than 500 of these complaints (56.8%) were from individuals who experienced difficulty when gaining access to their personal data held by organisations. This was a record high for this type of complaint which is indicative of the increased level of awareness among the general public of their statutory right of access.

Last year the Office dealt with 1,577 Data Security Breach notifications. The 2013 Annual Report contains a variety of case studies regarding Data Security Breach investigations. One such case study involved the taking of a client list by a former employee to a new employer. This has emerged as a regular issue in recent years and is a serious breach that is a big concern for all employers.

Civil sanctions may result where a person suffers any damage as a consequence of failures on the part of a data controller to meet his/her obligations.

In November 2013 it was discovered that the personal information of more than 1,500,000 people was compromised by a major security breach at a Co. Clare based Company. In an RTE Morning Ireland interview at the time, Mr. Hawkes admitted that “cyber-criminals have become extremely sophisticated and it can be quite difficult to actually identify that your system has been perpetrated.” This was one of the worst data breaches in Irish history.

The Society for Chartered IT Professionals in Ireland, known as the Irish Computer Society (ICS), carried out a recent survey on data protection in Ireland and the results, which were published in January 2014, were astonishing.

256 Irish based companies were surveyed and a record number of data breaches were reported to have occurred in 2013. Findings revealed that one in two of the surveyed companies experienced a data breach during the last 12 months. In fact, more than 20% of the companies contacted by the ICS reported multiple breaches. These statistics mark a significant increase on last year’s figures when 43% of companies examined reported a breach.

According to the results, one third of employees are not fully aware of data protection issues and many receive insufficient data protection training or, alarmingly, no relevant training whatsoever.

Several IT managers admitted that Data Protection policies are not implemented at all in their Company or they are only partially adhered to. The survey has highlighted the need for companies to manage their data processing environment much more carefully and provide additional training for their IT administrators and all employees who have contact with personal information pertaining to employees/clients. According to the ICS survey, negligence on the part of employees accounted for 77% of the reported incidents. Hackers seeking to obtain data and unencrypted laptops were also cited as major threats.

According to Fintan Swanton, Chairman of the Association of Data Protection Officers, “Clear policies and procedures are vital, with regular refresher training and timely reviews to ensure that staff are complying with the structures.”

It is important for employers to be aware that new data protection legislation will require most organisations to appoint a Data Protection Officer.

By The HR Company Administrator|2017-01-02T10:59:51+00:00June 17th, 2015|Contracts of Employment|0 Comments

The Role of NERA in our Workplaces

In the 6 month period between January and June 2013, The National Employment Rights Authority (NERA) conducted 2,755 workplace inspections. A staggering 1,458 (53%) of these inspections were unannounced!

NERA’s update on activity from January to September 2013 illustrated the following:

*In the first 9 months of 2013 the NERA Customer Service Unit provided information to more than 48,484 people. The vast majority of people who received information from the Customer Service Unit were employees or former employees (an estimated 71%).

*Redundancy, Working Hours, Conditions and Terms of Employment, Payment of Wages and Unfair Dismissal were the main topics/issues dealt with during the period.

*The Workplace Relations Customer Services (which deals with complaints in relation to all employment rights bodies) received 11,787 Employment Rights Complaints between January and July of 2013. This number represents a significant increase on the same period in 2012 when 9,809 complaints were received.

*4,009 workplace inspection cases were completed in the first 9 months of 2013. These cases involved more than 44,100 employees. This represents a significant increase on the 2012 figure of 3,140. The amount of unpaid wages recovered totalled €583,650.

*In the period between January and September 2013, 33 cases were referred for prosecution. 47 convictions were recorded in cases heard by the Courts during the first 9 months of last year.

http://www.workplacerelations.ie/en/Publications_Forms/NERA_Update_September_2013.pdf

By The HR Company Administrator|2017-01-02T10:59:51+00:00June 17th, 2015|Contracts of Employment|0 Comments

EAT Annual Report Highlights Shocking Statistics for Employers

The 2012 Annual Report of the Employment Appeals Tribunal has highlighted some astounding statistics 

According to Chairperson Kate T O’Mahony’s foreword “there are presently approximately 5,000 cases awaiting a hearing, of these 37% are unfair dismissals cases.”

According to the Chairperson’s foreword, “In its appellate jurisdiction the Tribunal deals with disputes about matters occurring during the course of the employment relationship. A notable trend in recent years has been the steady increase each year in the percentage of the Tribunal’s appellate work which, significantly doubled from 12% in 2011 to 24% in 2012.”

In 2012, employees had some sort of additional representation at the hearing before the Employment Appeals Tribunal on 1,917 occasions – employers, however, only had representation in 1,116 cases. It is clear that unfair dismissal cases see the highest level of representation but it is interesting to note that employee parties had representation in 1,071 cases and employer parties only had representation on 740 occasions.

Unfair Dismissal, EAT

In 2012, the Employment Appeals Tribunal received 5,623 cases.

The number of appeals against the recommendations of the Rights Commissioners received in 2012 was 1,349 – this number represents a 38% increase on the previous year and a staggering 81% increase on the 2010 total.

The top 3 categories of cases referred to the Employment Appeals Tribunal in 2012 were Unfair Dismissal (1,742), Redundancy (1,239) and Minimum Notice & Terms of Employment (929).

In 2012, the Employment Appeals Tribunal awarded almost €7million in 377 Unfair Dismissal cases. The average compensation awarded was more than €18.5k. *96 claimants received more than €25k

The number of Payment of Wages cases disposed of in 2011 was 154 – this number rose by 164% to 407 in 2012.

The number of Maternity Protection Acts appeals rose from just 2 in 2011 to 11 in 2012.

Standard HR Services from The HR Company

By The HR Company Administrator|2017-01-02T10:59:52+00:00June 17th, 2015|Contracts of Employment|0 Comments

A significant number of employees regularly work with Visual Display Units (VDUs) as part of their role.

Employers – Did you know that there are a range of measures that you must adhere to with regard to VDUs in your workplace?

*The following are the categories of employees who will be covered by these Regulations;

If the employee has no choice but to the use the VDU to carry out his or her work.
If the employee normally uses the VDU for continuous periods of more than one hour.
If the VDU is generally used by the employee on a daily basis.

Please note that a normal laptop is not covered by these Regulations due to the fact that the keyboard is tilt-able and separate from the screen so as to allow the user to find a comfortable working position hence avoiding fatigue in the arms or hands of the employee.

*In accordance with the Safety, Health and Welfare at Work Acts 2005 and 2010, employees working with VDUs are entitled to have their workstation assessed in line with the following requirements;

The Company must ensure that the general use of the equipment is not a source of risk for the employee.
The Company is obliged to perform an analysis of the employee’s workstation in order to evaluate the safety and health conditions to which it may give rise.
The Company must take appropriate measures to remedy any risks found during the workstation analysis.

Employer Responsibilities

*Upon the commencement of their employment employers must ensure that;

Employees are trained in the use of the VDU workstation and given information about health and safety factors.
Employees receive periodic breaks or changes of routine (away from the VDU).

Employees receive appropriate eye and eyesight tests (or may opt for either) before working with VDUs as well as at regular intervals throughout their employment with the Company.

If an employee experiences any eyesight/physical problems as a result of working with a VDU, the employee should highlight the issue to his or her manager as soon as possible.

*Some notable points for employers;

•             If special corrective appliances (glasses) are required exclusively for working at a display screen, they must be provided by the employer at no cost to the employee. The costs of minimum requirement frames and lenses must be borne by the employer.

•             Should the glasses be used also for other purposes the employer must cover the cost of the correction required for working with display screens only.

•             Employer obligations relating to the various components of the workstation (from chairs to the display screen, lighting, noise levels, heat, radiation and humidity) are also included in the Acts.

We have created a draft VDU Policy for you to incorporate in your Employee Handbook alongside all of your other HR policies.

Click the below image in order to download our draft policy that you can tailor for your Company.

By The HR Company Administrator|2017-01-02T10:59:50+00:00June 17th, 2015|Contracts of Employment|0 Comments

Employers - Did you know that, as of today May 1st, 2014, New Legislation on the Use of Mobile Phones While Driving will be effective?

For some time now it has been illegal to talk on the phone or send text messages while driving. However, an amendment, effective 1^st May, 2014, will tighten up on the rules which saw some people dodge penalties if the phone was operated while resting in a “cradle” or via a hands-free kit, for instance.

The amendment to the existing legislation governing phone use while driving, which was signed by Leo Varadkar, Minister for Transport, on 11^th April, 2014, makes it an offence for an individual to "hold” a mobile phone while driving a mechanically propelled vehicle in a public place.

Holding the mobile device includes supporting or “cradling” it with any part of your body (not just your hand) e.g. between the neck and shoulder. It is not a requisite that a person is actually engaged in a conversation on the phone. Similarly a person sending or even reading a text message (including SMS/MMS), or accessing information via the internet/e-mails etc. is committing an offence if "holding” the device as outlined above.

Sending or reading a text, in this instance, does not include anything done without touching the mobile phone or through voice activation.

The offence is punishable on conviction with a fine of up to €1,000 (first offence). The fine could reach €2,000 for a second offence. Three offences within 12 months could see a motorist face a 3 month jail term in addition to a fine. This is in addition to penalty points.

Close to 10,000 people were detected holding a mobile while driving in the Republic of Ireland between the beginning of January and the end of March 2014.

Assistant Garda Commissioner, John Twomey, communicated the staggering statistic that a motorist is four times more likely to have a collision when using a mobile phone.

Employers should issue employees with a notice detailing the important new regulations so that they are aware of their responsibilities. This notice should also serve to inform the employees that the Company will not cover the cost of road traffic offences including fines received under the penalty points system. Your notice should let employees know that these costs will be borne by the employee regardless of whether the vehicle was being driven for private or business use at the time the offences occurred.

We have prepared a sample Notice to Employees to help you to explain the new legislation – this can be downloaded by clicking the below image.

Mobile Phone Use, New Legislation, Notice to Employees

We hope you find it helpful!

By The HR Company Administrator|2017-01-02T10:59:53+00:00June 17th, 2015|Contracts of Employment|0 Comments

Annual Leave Calculation, all hours to be included
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Annual Leave Calculation, all hours to be included

Policies & Procedures

Annual Leave Calculation, all hours to be included

Did you know that all hours worked by any employee are taken into account when calculating Annual Leave?

This will include any hours worked in addition to normal working hours.

Further to this there are additional leave periods that will be included when calculating Annual Leave for an employee:

Maternity Leave
Public Holidays
Adoptive leave
Parental Leave
The first 13 weeks of Carers leave
Force Majeure Leave

These are protected leave periods and therefore Employees continue to accrue Annual Leave while on any of the above listed leaves.

Leave that is not included when calculating Annual Leave for an employee:

Sick Leave
Occupational Injury (sick leave as a result of such injury)
Temporary Lay-off
Career Break

By The HR Company Administrator|2020-09-15T08:24:51+00:00June 17th, 2015|Policies & Procedures|0 Comments

Carer’s Leave – What Employers need to Know.

Carer’s Leave

In accordance with the provisions of the Carer’s Leave Act, 2001, if an employee has completed 12 months’ continuous service with you; he or she is entitled to take unpaid Carer’s Leave in order to care for a person (a ‘Relevant Person’) who requires full-time care and attention. Carer's Leave is protected leave.

A ‘Relevant Person’

A ‘Relevant Person’ is a person who is over the age of 16 and is so incapacitated as to require full-time care and attention or a person who is under 16 and in receipt of a Domiciliary Care Allowance. A Deciding Officer of the Department of Social Protection determines whether or not an individual qualifies as a ‘Relevant Person’. Employees may be entitled to receive Carer’s Benefit/Carer’s Allowance whilst on leave. You should inform employees that they should apply to the Carer’s Benefit Section at their local Social Welfare Office so their eligibility can be assessed. There is no statutory obligation on you as an employer to pay employees during Carer’s Leave.

Entitlements

Other than their right to remuneration, you should treat employees as though they have been working during a period of Carer’s Leave. Annual Leave and Public Holidays will accrue as normal for employees during the first 13 weeks of Carer’s Leave. The minimum statutory entitlement is 13 leave weeks and the maximum period is 104 weeks. The 104 weeks (2 years) can be taken in one continuous block or it can be broken up into multiple separate periods of leave – there must be a gap of at least 6 weeks between periods of Carer’s Leave.

Application/Notification

If one of your employees intends to avail of Carer’s Leave then he or she should write to you not less than 6 weeks before the proposed commencement of the leave in order to apply for this leave. The application should include the following details:  

The manner in which the employee intends to take the leave
The proposed commencement date and, where possible, end date (this won’t always be possible – especially if the ‘Relevant Person’ is terminally ill; for instance)
That he or she has made an application to the Department of Social Protection for a decision to be made in respect of the person for whom they propose to avail of the leave

A confirmation document should be signed by you and the employee prior to the commencement of Carer’s Leave. If the employee would like to return to work on a different date than previously agreed (if one was agreed) then he or she should provide you with a ‘Notice of Return to Work’ not less than 4 weeks prior to the intended return date.

Termination of Carer’s Leave

Carer’s Leave may be terminated for several reasons. If it becomes apparent that the person for whom the care is being provided is not in need of full-time care any longer for whatever reason, you may terminate the leave. The Department of Social Protection will make a decision in certain instances. To download our Staff Suggestion Form click the image below ->

By The HR Company Administrator|2021-02-23T17:49:11+00:00June 17th, 2015|Carers Leave, HR Guide, Leave and Holidays|0 Comments

Employing Young People – Under 18s Register
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Employing Young People – Under 18s Register

Contracts of Employment, HR Guide, Policies & Procedures

Employing Young People – Under 18s Register

The Protection of Young Persons (Employment) Act, 1996 is designed to protect the health of young workers and places restrictions on their employment. The basis for this is to guarantee the protection of young people and to ensure the workload assumed is not jeopardising their education.

The law sets minimum age limits for employment. It also sets rest intervals and maximum working hours, and prohibits employees under the age of 18 from working late at night. Employers must also keep specified records for those workers who are under the age of 18.

During a National Employment Rights Authority (NERA) assessment the inspector will request access to the company’s register of employees under the age of 18 (if the company employs workers in this category). 

  NERA

There are strict rules that employers must adhere to when employing those under the age of 18.

According to the Act employers cannot employ children under the age of 16 in regular full-time jobs. 

Children aged 14 and 15 may be employed on a controlled basis.

Some rules to pay attention to:

•They can do light work during the school holidays – 21 days off must be given during this period.

•They can be employed as part of an approved work experience or educational programme where the work is not harmful to their health, safety or development.

•They can be employed in film, cultural/advertising work or sport under licences issued by the Minister for Jobs, Enterprise and Innovation.

•Children aged 15 may do a maximum of 8 hours of light work per week during the school term. The maximum working week for children outside of the school term is 35 hours (or up to 40 hours if they are on approved work experience).

•The maximum working week for children aged 16 and 17 is 40 hours with a maximum of 8 hours per day.

  Under 18s

There are many obligations on the employer when he or she employs a young person – here is a list of some of the items that employers must be vigilant of:
 

An employer must be provided with a copy of the young person’s birth certificate (or other documentation proving age) prior to the commencement of employment.

Break rules are: 30 minutes break after working 4.5 hours

Before employing a child an employer must obtain the written permission of the parent or guardian of the child.

An employer must maintain a register of employees under 18 containing the following information:

•The full name of the young person or child

•The date of birth of the young person or child

•The time the young person or child commences work each day

•The time the young person or child finishes work each day

•The rate of wages or salary paid to the young person or child for his or her normal working hours each day, week, month or year, as the case may be, and

•The total amount paid to each young person or child by way of wages or salary

Download your copy of our Under 18s Register here:

An employer and parent/guardian who fails to comply with the provisions of the Act shall be guilty of an offence. 

Some other notable rules the employer must adhere to when employing a young person or child are as follows:

•The employer is obliged to ensure that the young person receives a minimum rest period of 12 consecutive hours in each period of 24 hours.

•The employer is obliged to ensure that the young person receives a minimum rest period of 2 days which shall, where possible, be consecutive, in any 7 day period.

•The employer cannot require or permit the young person to do work for any period without a break of at least 30 consecutive minutes.

For a comprehensive guide to employer responsibilities and the rules and regulations governing the employment of young workers please refer to the Protection of Young Persons (Employment) Act, 1996

You must give employees a copy of the Protection of Young Persons (Employment) Act

docs/Protection of Young Persons Employment Act 1996.pdf

Under 18 Employees

The national minimum wage for an experienced adult employee is €8.65 per hour.  An experienced adult employee for the purposes of the National Minimum Wage Act is an employee who has an employment of any kind in any 2 years since the age of 18.

The Act also provides the following sub-minimum rates;  

An employee who is under 18 is entitled to €6.06 per hour (this is 70% of the minimum wage)

An employee who is in the first year of employment since the age of 18 is entitled to €6.92 per hour (80% of minimum wage)

An employee who is in the second year of employment since the date of first employment over the age of 18 is entitled to €7.79 per hour (90% of the minimum wage)

By The HR Company Administrator|2021-02-23T17:50:11+00:00June 17th, 2015|Contracts of Employment, HR Guide, Policies & Procedures|0 Comments

Employee dismissed for nonconsensual use of premises awarded €25k

A recent Labour Court recommendation where a former employee was awarded €25,000 in compensation for Unfair Dismissal illustrates why employers should make sure to attend any hearings that involve them.   The case in question concerns a former employee's claim that he was Unfairly Dismissed after he used the Company premises without the permission of his employer. In accordance with section 20(1) of the Industrial Relations Act, 1969, this particular worker referred his case to the Labour Court in June of 2013. He agreed to be bound by the Recommendation of the Labour Court. A Labour Court hearing took place in February of this year; however, the Company declined to attend the hearing and did not appoint any representation. This meant that the evidence submitted was solely that of the Claimant. The Court found it 'regrettable' that the employer declined to attend the hearing in any form and found it disappointing that the Company did not avail of its opportunity to present the version of events leading to this dispute from their perspective. The former employee accepted that he had used the Company's premises without prior consent. However, he did not accept that his behaviour constituted gross misconduct and, consequently, he contested the gravity of the punishment. The employee argued that his dismissal was disproportionate to his actions and maintained that the dismissal was unfair. Unfair Dismissal Based on the uncontested submissions of the employee (the Claimant) the Court was satisfied that the penalty of dismissal was inconsistent with the actions of the employee and the Court determined that a warning would have been more appropriate in the circumstances. According to the Court, the dismissal was both procedurally and substantially unfair and so the Court recommended that the Company pay compensation in the amount of €25,000 to their former employee in respect of his Unfair Dismissal. This figure was to be in full and final settlement.  

The difference between Constructive and Unfair Dismissal:

Constructive Dismissal is the term used when an employee terminates his or her employment based on the conduct of the employer. Unfair Dismissal is slightly different in that unfair dismissal cases arise when the employee feels as though he or she has been dismissed by the employer on unfair grounds. Unlike in an unfair dismissals case where dismissal is deemed to be unfair unless proven otherwise and justified by the employer - in constructive dismissal instances the onus is on the employee to prove that their resignation was based on poor employer conduct. Employees claim constructive dismissal/unfair dismissal under the Unfair Dismissals Acts 1977-2007. If it is found that the employee has been unfairly dismissed he or she could either be awarded compensation for the loss of earnings suffered by the dismissal or could be placed back in their original role – However, this is not common practice due to the expected tension or strained relationship between employer/employee and due to the amount of time that is likely to have passed between the termination of the employment contract and the resolution of the case. Typically, an employee needs to have accrued 52 weeks’ continuous service with the employer. However, it is crucial for the employer to bear in mind that 52 weeks’ continuous service is not always an essential element. Employees dismissed for trade union membership or because they are pregnant/exercise their right to parental leave, for instance, do not have to have accrued 12 months’ continuous service prior to claiming unfair/constructive dismissal under the Acts.   If the employer acts unreasonably towards the employee or breaches the contract of employment (or demonstrates that they no longer intend to adhere to the terms and conditions outlined therein) then the employer is at risk of a claim under the Acts. It is important for employers to be aware of everything that occurs in their workplace as even other employees’ behaviour that goes unchecked by the employer could contribute to a constructive dismissal case. It is also very important for employers to attend Labour Court hearings if they are scheduled so they can give evidence in support of their decision. Also, the Court can look less favourably upon employers who fail to attend and can award higher levels of compensation to the employee.  

By The HR Company Administrator|2017-01-02T11:00:01+00:00June 17th, 2015|Compensation|0 Comments

Irish Employment Legislation Updates and Guidance

Disabled Employee not Accommodated by Employer Awarded €30,000!

As redress for infringement of her statutory rights and breaches of the Employment Equality Acts, former employee of a Multi-National Retailer receives compensation in the amount of €30,000.

Important Points for Employers re Data Protection

The Role of NERA in our Workplaces

EAT Annual Report Highlights Shocking Statistics for Employers

Important Employer Responsibilities re Employees working with VDUs

A significant number of employees regularly work with Visual Display Units (VDUs) as part of their role.

Click the below image in order to download our draft policy that you can tailor for your Company.

Employers – Do You Know the New Regulations re Mobile Phone Use While Driving?

Employers - Did you know that, as of today May 1st, 2014, New Legislation on the Use of Mobile Phones While Driving will be effective?

We have prepared a sample Notice to Employees to help you to explain the new legislation – this can be downloaded by clicking the below image.

We hope you find it helpful!

Annual Leave Calculation, all hours to be included

Annual Leave Calculation, all hours to be included

Carer’s Leave – What Employers need to Know.

Employing Young People – Under 18s Register

Employing Young People – Under 18s Register

The Protection of Young Persons (Employment) Act, 1996 is designed to protect the health of young workers and places restrictions on their employment. The basis for this is to guarantee the protection of young people and to ensure the workload assumed is not jeopardising their education.

Employee dismissed for nonconsensual use of premises awarded €25k

Irish Employment Legislation Updates and Guidance

As redress for infringement of her statutory rights and breaches of the Employment Equality Acts, former employee of a Multi-National Retailer receives compensation in the amount of €30,000.

A significant number of employees regularly work with Visual Display Units (VDUs) as part of their role.

Click the below image in order to download our draft policy that you can tailor for your Company.

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Employers - Did you know that, as of today May 1st, 2014, New Legislation on the Use of Mobile Phones While Driving will be effective?

We have prepared a sample Notice to Employees to help you to explain the new legislation – this can be downloaded by clicking the below image.

We hope you find it helpful!

The Protection of Young Persons (Employment) Act, 1996 is designed to protect the health of young workers and places restrictions on their employment. The basis for this is to guarantee the protection of young people and to ensure the workload assumed is not jeopardising their education.